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Section 5 Firearms Act 1968

Date Updated: January 2012

Title: Firearms

Offence: A person commits an offence if, without the written authority of the Defence Council, he has in his possession or purchases or acquires or manufactures or sells or transfers any of the prohibited weapons and ammunition listed in section 5(1).

Legislation: section 5 Firearms Act 1968

Mode of Trial:

  • Triable Either Way prior to 22 January 2004
  • Offence committed after 22 January 2004 as follows
  • Indictable only ss5(1)(a),(ab),(aba),(ac),(ad),(ae),(af), and (c) and s5(1)(1A)(a) only if Indictment has a specific count alleging the relevant offence under s5.
  • Triable Either Way ss5(1)(b), and ss5(1)(1A)(b),(c),(d),(e),(f) and (g) class 3 s51 and schedule 6 FA 1968 amended by s288 CJA 2003

Statutory Limitations & Maximum Penalty: 10 years for all s5(1) offences whether Indictable Only or Triable Either Way. 

However some offences attract a mandatory minimum sentence, they are:

  • Offences committed after 22 January 2004
  • Where the offender aged 16 or over at the time of the offence and
  • Offence is 5(1)(a),(ab),(aba),(ac),(ad),(ae),(af),(c) or 5(1A)(a)
  • Minimum sentence
    • 16 and 17 year olds - 3 years
    • 18 and over - 5 years (on or after the 28/5/07, prior to that 18-20 could not receive the Minimum Mandatory Sentence - The Firearms (Sentencing) (Transitory Provisions ) Order 2007 (S I 2007 No. 1324)

Relevant sentencing Guidelines

None for the minimum term offences in light of minimum term sentence provisions

NOTE cases dealing with exceptional circumstances for not imposing the appropriate custodial sentence and required minimum term

R v Rehman, R v Wood [2006] 1 Cr.App.R. (S) 77

Att.Gen's Reference (No.43 of 2009) [2010] 1 Cr.App.R.(S) 100

Held that it should only be in truly exceptional circumstances that a sentence shorter than the prescribed minimum should be imposed.

Att.Gens's Reference (No.23 of 2009) [2010] 1 Cr.App.R.(S) 70

Held that an offender's child suffering from an aggressive and debilitating (possibly fatal) illness was capable of amounting to an "exceptional circumstance" BUT previous good character and an absence of any intention of using the firearm for criminal purposes were not so capable

Where exceptional circumstances are found , the minimum term should be kept as a starting point. R v Bowler [2007] EWCA Crim 2068 and R v Beard [2008] 2.Cr.App.R.(S) 41

Attorney General's Reference No 120 and 121 of 2004  2005 WL 936844 (CA (Crim Div)), [2006] 1 Cr. App. R. (S.) 7, [2005] EWCA Crim 890

Guideline case on what is an exceptional circumstance not to receive a minimum sentence. Three defendants converting blank firing weapons to fully functioning s5 firearms.  Convicted of conspiracy and sentenced to 3 years each for three separate offences to run consecutively

R v Jordan; R v Alleyne; R v Redfern [2005] 2 Cr.App.R.(S) 44

Section 51A(2) does not allow for a reduction of the minimum term on account of a guilty plea.

Relevant Sentencing Case Law

Section 5(1)(b) Offences

Manning [2005] EWCA Crim 1205

D pleaded guilty to possession of a stun gun - s5(1)(b). Found on a hook in D's bedroom. D said never took it outside nor had he used or intended to use it.
Held that a custodial sentence was not inevitable - 9 months imprisonment substituted to Community Rehabilitation Order

Kirby [2009] 2.Cr.App.R. (S) 49

D appealed against a sentence of 52 weeks' imprisonment suspended for two years and a 200-hour unpaid work requirement after pleading guilty to possession of a prohibited weapon contrary to the Firearms Act 1968 s.5(1)(b). D, a bar manager, was found by police officers to be in possession of two fully functioning Taser stun guns that he claimed to have confiscated from customers. When interviewed, D claimed he had intended to hand the items to the police but had forgotten. D had previous convictions for assault, criminal damage and threatening behaviour but his last relevant conviction was in 1996. The stun guns could not discharge a projectile but were designed to deliver a sharp electric shock. K submitted that, in the circumstances accepted by the court, the custody threshold had not been passed.

For offences under s.5(1)(b), it was necessary to consider the type of weapon, the use made of it, the intention of the offender and the offender's record, R. v Avis (Tony) [1998] 1 Cr. App. R. 420 considered. In the instant case, none of the factors capable of aggravating the commission of the offence was present. While unlawful possession of weapons was a serious offence, the custody threshold had not been passed in the circumstances. Thus, the suspended sentence order was wrong in principle and was quashed. A community order to perform unpaid work for 200 hours.

Ancillary Orders:

  • Forfeiture orders
  • Destruction orders

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